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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Pattrick & Anor v Marley Estates Management [2007] EWCA Civ 1176 (15 November 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/1176.html Cite as: [2007] EWCA Civ 1176 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TORQUAY & NEWTON ABBOT COUNTY COURT
HIS HONOUR JUDGE TYZACK QC
5TQ02014
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MUMMERY
and
LADY JUSTICE ARDEN
____________________
PATTRICK & ANR |
Appellant |
|
- and - |
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MARLEY ESTATES MANAGEMENT |
Respondent |
____________________
MR M BERKLEY (instructed by Messrs. WBW) for the Respondent
Hearing dates : 31 October 2007
____________________
Crown Copyright ©
The Chancellor :
"(1) The Landlord is the freehold owner of the property more fully described in Part I of the First Schedule hereto together with the buildings comprising individual houses ("the Houses") and ancillary buildings ("the Buildings") erected thereon or on some part thereof ("the Estate")
The demise contained in clause 1 was of
"ALL THAT the property more particularly described in Part II of the First Schedule hereto ("the Demised Premises") TOGETHER WITH (to the exclusion of all other easements rights and privileges) the easements rights and privileges mentioned in the Third Schedule hereto subject as therein mentioned EXCEPT AND RESERVING as mentioned in the Fourth Schedule hereto TO HOLD the Demised Premises unto the Tenant for the term of 999 years from" 1st July 1996.
"ALL THAT land shown edged red on Plans 3 A, B and C TOGETHER WITH the house located at the lower ground floor upper ground floor and first and second floors known as Marley House, Marley, Rattery, South Brent and the upper and lower terrace and stores and the garages and the parking area and the oil tank all shown coloured red on Plan 3B TOGETHER WITH the doors and windows thereof and the interior faces of the ceilings floors and main structural walls thereof (internal walls which are not structural and which divide the house from other parts of the Estate of which the Demised Premises form part being party walls) AND TOGETHER WITH all cisterns tanks sewers drains pipes wires ducts and conduits used solely for the purpose of the Demised Premises EXCEPTING AND RESERVING from the demise all cisterns tanks sewers drains pipes wires ducts and conduits used solely for any parts of the Estate and the main structural parts of the building of which the demised premises form part including the roof and foundations thereof)"
"5. THE Tenant hereby covenants with the Landlord and with the owners and tenants of the other houses leased by the Landlord that the Tenant will at all times hereafter:
(a) Keep the Demised Premises (other than the parts thereof comprised and referred to in clause 6 hereof) and all walls party walls sewers drains pipes cables wires and appurtenances thereto belonging in good and tenantable repair and condition and in particular (but without prejudice to the generality of the foregoing) so as to support shelter and protect the other parts of the building of which the demised premises form part
[(b) – (d)]
"THE Landlord hereby covenants with the Tenant as follows:
[(a) to (c)]
(d) That the Landlord will maintain repair decorate and renew
(i) the main structure (including the roof chimney stacks gutters rainwater pipes and foundations) of the houses and the buildings
[(ii)..]
[(e)..]
(f) That the Landlord will so often as is reasonably required decorate the exterior including the wood and ironwork of the houses and the buildings in such manner as it shall think fit"
"…I entirely agree with Buckley J that in the books there may be found a great variety of cases where, with reference to the subject-matter of the covenant and the meaning of what was in question between the parties, a screen, or some erection of that nature, might be considered a "building" with reference to some covenants, and might not be considered a "building" with reference to others. The subject-matter to be dealt with is to be looked at in order to see what the word "building" means in relation to that particular subject-matter. It is impossible to give any definite meaning to it in the loose language which is used in some cases. Anything which is in the nature of a building might be within one covenant, and the same erection might not be a building with reference to another covenant."
"[it is] a permanent man-made structure present at the time of the grant; it includes walls consisting of concrete or stone or brick or block, at one point there is a rolled steel joist, there is a concrete slab roof, there is a flight of stone or concrete stairs and there is an inner store room. This was all deliberately left in situ when the chapel was removed, plainly creating a convenient way of dealing with what would I find otherwise have been possibly a quite expensive alternative and potentially less attractive solution. It also bears some similarity to the cloisters and terrace around the main house. It is certainly very damp and in poor overall condition but it does provide some shelter for rough storage of items like garden furniture and children's outside toys albeit that they would be completely open to the elements from the outside arched wall and dampness from above and below."
"...these cloisters were never intended to come within that description, not being a building in the conventional sense – and being in a completely anomalous situation."
"...knowing that at the time of the grant the concrete slab which formed the roof was not waterproof, neither were the inner walls and therefore the sheltered part which forms a walkway can only be used for very rough storage, and also knowing that if they do come within the description they would fall within the repairing covenant of the landlord and hence be the responsibility of all 17 lessees in accordance with their respective percentages?"
"54. In my judgment the reasonable man would say that they should not be included because it would be wholly unreasonable in the circumstances for all lessees at Marley to be responsible for the potentially huge expense of maintaining and repairing this area which has never been in a state where it can be effectively maintained since far more radical treatment needs to be applied before it could be, and all of which only benefits one lessee. The reasonable man not only needs to look at what is there physically, he also needs to know what are the implications or ramifications of reaching a decision either way – and he would need to consider the estimates in Mr Squire's report which I have summarised above.
55. Thus although in some contexts these cloisters could in my judgment be within the definition of a building (for example in a restrictive covenant or planning permission situation), in the context of this particular case I rule that they do not. In my judgment therefore the cloisters and the terrace above are not ancillary buildings neither are they part of the main structure of the house and therefore do not come within the landlord's repairing covenant. They are therefore I find the sole repairing responsibility of C being within their demised premises....
56. For the avoidance of doubt (a) if I am wrong about applying the reasonable man test to this case I would still rule that these cloisters are not, in the context of this lease, within the ambit of the expression an 'ancillary building', and (b)..."
"Furthermore there has never been any settled agreement as to who is responsible for repair of these windows as opposed to decoration. True it is that Mrs Lauren [the company secretary of the Company and resident in the Cloisters South] agreed to the replacement of two of Mr Sanders [the lessee of and resident in Marley South] windows but it would be wrong in my judgment to find that this one occasion is so significant that it establishes some kind of precedent which fixes liability for all time in the future when Mrs Lauren admitted that it was a mistake. The overall context in this whole sad saga is one of doubt, uncertainty and lack of clarity."
Counsel for the Lessees points out that the judge omitted to mention the fact that the Lessees had paid their 14% of that cost.
"So far as the gate is concerned, this has been erected by [the Lessees] within their demise but across a right of way. It is located at the south eastern point on plan 3B...where the brown colouring meets the red."
The fact that the relevant plan is plan 3B(1) does not affect the judge's identification of the site of the gate. But it is relevant to note that plan 3B(1) does not have the brown colouring appearing on Plan 3B which might have been thought to denote a right of way. The judge noted that the Lessees had offered to keep the gate unlocked.
"73.....[Counsel for the Lessees] argues that although the gate does interfere with a right of way, first of all the right of way leads nowhere and no-one is inconvenienced by the gate, and secondly to be actionable an interference with a right of way needs to be substantial.
74. What [Counsel for the Lessees] ignores in my judgment is an important maxim of equity namely that 'he who comes to equity must come with clean hands'. I find that Mr Patrick installed this gate knowing that the path was a right of way and in defiance of all other residents at Marley. It is yet another instance of his cavalier and high-handed behaviour which has sadly contributed to an unpleasant atmosphere existing at Marley for a long time. In my judgment he has not come to this court with anything like clean hands."
The judge indicated that he would accept an undertaking to remove the gate within a reasonable time, failing which he would grant an injunction requiring its removal.
"the court or tribunal to which the application is made may make such order on the application as it considers just and equitable in the circumstances."
(1) allow the appeal and set aside paragraphs 1, 2(a), (b) and (c) and 3 of the order of the judge;
(2) declare that:
(a) the Company is liable to maintain, repair, decorate and renew the main structure of the Chapel Cloisters,
(b) the Company is liable to decorate the windows pursuant to clause 6(f) but not to repair them pursuant to clause 6(d)(i) of the Lease;
(3) order that the costs of the Company of and occasioned by this action and appeal, including any costs it is ordered to pay to the Lessees, are not to be regarded as relevant costs to be taken into account in determining the amount recoverable by the Company from the Lessees under clause 5(b) and the Fifth Schedule to the Lease.
In consequence the undertakings given to the court by the Lessees, as set out in paragraph I of and the schedule to the Judge's order, will be discharged.
Mummery LJ
Arden LJ